Federal judge decides to hear part of Waters case

A federal judge has decided to hear part of fired Ohio State marching band director Jonathan Waters’ case against the university, according to court documents.

U.S. District Court Judge James Graham ruled today that Waters has a legal basis to sue OSU for “reverse sexual discrimination,” but threw out other complaints.

The judge did throw out Waters’ complaint that OSU didn’t give him due process when he was fired. Graham disagreed with Waters’ argument that, though he was an at-will employee, he had an implied faculty status.

Waters has sued for a minimum of $1 million in compensatory damages, in addition to seeking punitive damages, attorney fees and reinstatement.

OSU tried to get the entire lawsuit dismissed.

Waters’ lawyer, David Axelrod, said he was “delighted” to be going to trial.

“We are anxious to start talking to witnesses to get to the truth,” he told The Lantern Friday evening.

Axelrod said he “respectfully disagrees” with the judge’s decision to throw out part of the lawsuit.

OSU spokesman Chris Davey provided a university statement about the decision to The Lantern on Friday.

“We appreciate the court’s careful consideration of the university’s motion and are grateful that at this early stage the court has dismissed all of Mr. Waters’ due process claims,” the statement read. “As a result of the court’s decision, all of Mr. Waters’ claims against President (Michael) Drake and Provost (Joseph) Steinmetz have been found to be without merit and are now gone.

“As for Mr. Waters’ sole remaining claim, that he was terminated because he is a man, we look forward to providing the factual support to enable early dismissal of that claim as well at the next opportunity presented by the proceedings.”

Waters was fired July 24 after a two-month long investigation by the university found that the marching band had a “sexualized culture.”

Due Process – Based on liberty interest – Dismissed (was not stigmatized by Glaros report, and did not take advantage of name clearing hearing)

Due Process – Based on substantive due process – Dismissed (was not a scapegoat for Title IX)

We are left with one item that the Judge allowed to go forward. Does not mean he will win, simply means the other three had no legal merits. Now Mr. Waters is faced with the option that he can attempt to sue, because he wasn’t treated like a cheerleader. There are going to be enough differences between the cheerleader situation and this situation to show plenty of reasons for dismissal that had nothing to do with gender.

I was a little surprised by the judges ruling because it seemed like the dismissed points were stronger than the sexual discrimination case. Just ask the DOE who dismissed the title IX investigation against the university because they are handling things correctly now. OSU even said that this discrimination point is not valid at the hearing because "you can't discriminate against a male".

It is ironic that OSU is now faced with having to defend their Title IX compliance record in court regarding their treatment of Jon Waters. I challenge OSU to publicly reopen all the other Title IX complaints which DoE closed with the Sept. 11 2014 agreement, because it really is abhorrent that OSU didn't care about those people's discrimination claims, but was happy to offer the Marching Band as the scapegoat for the misdeeds of others.

What SeekTU_Buckeye, in his rush to play cheerleader for the University, misses, is that even this one case gives Waters the opportunity to depose the principals involved in this sorry mess. Expect to see OSU, contrary to Chris Davey's usual bluster, rush to try to settle to avoid the embarrassing facts behind their conniving becoming public.

To depose who on account of what? They don't get to argue their major three points. Everything must be argued in regards to gender discrimination. Any line of questioning not pertaining to gender discrimination will not be effective in winning the case.

There is no precedent showing that a woman marching band director faced with the same situation at Ohio State would not have been dismissed. If Mr. Waters was fired as a cheerleading coach, faced with same the accusations of the cheerleading case, then he might have a valid argument. However, the band environment and the cheerleading accusations are different enough that you cannot prove gender discrimination. And no one believes he was fired because he was a man.

I wouldn't be surprised if OSU offers a settlement in the dollar amount that is less than the cost to go to trial, but it will not be near the million dollars sought.

Mr. Waters should give great pause in regards to his legal counsel. If his lawyers led him to believe they had a case based on the due process claims, and those were dismissed outright, Mr. Waters should have doubts about his lawyers judgement moving forward with proving a case of gender discrimination.

What Ohio State won't tell you but it's plain to see is Drake's effectiveness as a fundraiser with loyal alumni has suffered a tremendous blow. The gifts from alumni are down across the board and the exodus of dozens of key fundraisers is apparent. Once those donors leave its almost impossible to get them back. Unkess there is a major change in leadership so the Board has to wait for that to happen and wait for Drake and Steinmetz to go elsewhere, which is hopefully very soon. The two of them have wrecked many key relationships that are extremely time consuming and difficult to repair once the confidence has been damaged. Nice job guys!

Not only is there cause for Jon Waters to pursue a Title IX case against OSU (as SteveTR pointed out is ironic given his firing was part of what got the DoE off their back) there are also several students listed in the infamous Glaros Report who have a cause too. Their FERPA rights were violated with the release of publicly identifying information that caused them defamation and harm, and they each likely have a valid Titke IX case against OSU. That would be the frosting on this very layered cake of deception the university administration has perpetrated. Let the depositions begin!

SeekTU_Buckeye - The point that you so conveniently miss is that Waters' complaint is not about how a male or female Band Director would be treated, but about the fact that the cheerleading coach was given ample opportunity, with reviews and remediation plans, to correct the initial complaint against her. Waters was given absolutely none of these. It is also instructive to note that the male women's hockey coach, who was dismissed last month, was afforded a similar lengthy review and remediation process, and only dismissed after he failed to correct the issues previously identified.
Contrast this with a Band Director who received a succession of glowing performance reviews, received world-wide plaudits for his work, brought in over $30M to the University, but who was then summarily dismissed on the basis of three uncorroborated complaints without being given any hearing, or even seeing the notorious and error-strewn Glaros "Report" used as a basis for his termination. Oh, yes, he has a case against the University for discrimination, and we shall see how much of your and my taxes, on top of the $1M already dribbled away in attorney fees, the University will pay him

President Drake has done irreparable damage to our proud march band by throwing Director Waters under the bus as an expeditious way of getting out the Title IX complaint. Implying that action made students safer is preposterous on its face. He has created an atmosphere that repel leaders of integrity as the empty search for Director Water's replacement clearly demonstrates.

From the Dispatch Education Insider by Charlie Boss & Collin Binkley: Ex-OSU Band Finalist Was Fearful of 'battles.'

"One of the two finalists for the job of leading the Ohio State University Marching Band said he backed out of the hiring process in part because of the challenges the next director will face.
BarryHouser, the director of athletic bands at the University of Illinois, said Ohio State sought him for the job. He visited the OSU campus, he said in an email, and “had a wonderful experience with the faculty and staff, the respectful students.” But on April 13,he withdrew.
“I decided to do so due to going through the process at OSU and seeing some of the uphill battles ahead and comparing that to the wonderful program we have here at Illinois,” he wrote."

As it was until July 2014, OSUMB can be a wonderful experience again with the return of Jon Waters.

"Graham said the fact the band and football team appear on the same field does not mean they can be compared, so he rejected initial inclusion of the athletic department. He said initial discovery would be limited to other employment decisions by Drake or within the School of Music that oversees the band.

The judge said he may agree to extend information gathering into other areas depending on what is found."